The horrors of the Second World War provoked a significant expansion and codification of public international law, particularly rules concerning war. A particular aspect of this expansion, according to Ronald C.Kramer and Raymond J.Michalowski, was the adoption of the UN charter and subsequent birth of the United Nations. The Nuremberg Charter also declared waging aggressive war to be a state crime under both treaty and customary law.
The military invasion of Iraq in 2003, which eventually culminated in the capture of Bagdad and subsequent occupation of Iraqi territory until 2011, was conducted without explicit authorisation from the United Nations – including three permanent members of the Security Council. To add to this, Iraq was a member of the UN prior to the invasion. It therefore retained its legal sovereignty, territorial integrity, and political independence — of which international law deems subject solely to the imposition of the Security Council. Critics have since labelled the invasion and occupation of Iraq as a state crime. Kramer and Michaloswki, for instance, argue that the Iraq War violated the UN charter and international humanitarian law. The then United Nations Secretary-General, Kofi Annan, even stated in September 2004; ‘I have indicated it was not in conformity with the UN charter. From our point of view and the UN Charter point of view, it [the war] was illegal’. The legality of the Iraq War has also been questioned on the basis that evidence of Iraq’s weapons of mass destruction was insufficient and that the Bush administration possessed ulterior motives concerning regime change to exert control in the Middle Eastern region. The legal debate is, however, subject to particular discrepancies. Malcom Shaw, QC, for example, insists ‘there was a credible and reasonable argument in favour of the legality of the war.’ Advocates of the invasion tend to justify the war on the grounds that the UN Resolutions implemented during the first Gulf War granted the invading party the necessary powers for military force.
To demonstrate the significance of these arguments, the project will consider three primary sources. To narrow the scope of analysis, the sources considered will primarily focus on the British involvement under Tony Blair. For this, the project will explore the findings of the Chilcot inquiry (source 1), the resignation letter of Elizabeth Wilmshurst, deputy legal adviser to the Foreign Office (source 2) and, thirdly, a memorandum from the former British Attorney General Lord Goldsmith to Prime Minister Tony Blair (source 3). Due to the volume of the Chilcot inquiry, the analysis will only focus on Sir John Chilcot’s public statement.
‘A Preventative War’
One of the key legal arguments put-forth by officials of the Bush administration and advocates of the invasion alike was that the war was a war of self defense. Fundamental to this justification is Article 51 of the UN Charter.Article 51 recognises that states have an ‘inherent right’ to use force in self-defence in the face of an armed attack. Iraq, however, had not attacked the UK or the United States, nor was there ever any claim that such an attack was imminent. Article 51 would therefore be rendered inapplicable. Officials of the Bush administration nevertheless attempted to link Iraq to Al Qaeda and the September 11 attacks. To their dismay, both President Bush and Secretary Powell finally conceded there was no evidence linking Saddam Hussein to 9/11 or other terrorist attacks against the United States. Thereafter, recognising the limitations of Article 51, the Bush administration claimed the United States had a legal right to attack any nation it perceived as a potential threat to US interests. Based on this claim, administration officials repeatedly argued that the United States and its allies could legally attack Iraq because Hussein’s government possessed weapons of mass destruction (WMD) that might eventually be used against the United States, either directly or through terrorist networks. The Blair administration was also faced with the decision to a similar line of argument. Source 3 can be used to demonstrate this. Goldsmith advises the Prime Minister (see circled)
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Given Goldsmith’s role as Attorney General, this further alludes to the dubious nature of the legal justifications. Kramer and Michaloswki, have since argued that this was ‘an attempt to unilaterally rewrite international law.’ The administration’s claim to a right of preventative war focused much of the pre-war debate around the question of whether or not Iraq possessed WMD. Although, those in opposition further insist that even if Iraq had possessed WMD, a second UN resolution to Resolution 1441 would have been needed. Professor of Law Christine Chinkin, for instance, argues ‘[The war] was not self-defence under the UN charter so I don’t think there was any basis for it under the UN charter. I don’t believe there’s a right to pre-emptive self defence where a threat is not material.’ The resignation letter of Elizabeth Wilmshurst, deputy legal adviser to the Foreign Office, can be used to identify the gravity of this argument. In her letter, Wilmshurst objects to the legal advice offered to the Prime Minister by Attorney General Lord Goldsmith (source 3), see circled
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It is also worth noting the controversy surrounding Wilmshurst’s resignation and the connection to Goldsmith’s memorandum. Critics argue that the Government, by emitting material from Wilsmhurst’s letter, attempted to suppress evidence that Goldsmith believed war against Iraq was illegal less than two weeks before British troops joined the US-led invasion of the country. The suppressed passage, later released under the Freedom of Information Act, details that Lord Goldsmith, changed his view on the war twice before the invasion. Wilmshurst says that her view that a war would be illegal was the advice which the Foreign Office had consistently given before and after the UN security council resolution 1441, agreed in November 2002. She further claims that was also Lord Goldsmith’s view until March 7. Wilmshurt is referencing the parliamentary answer released by Lord Goldsmith on March 17, the eve of a crucial Commons vote on military action. Goldsmith argued, on the basis of advice from Tony Blair, that it was ‘plain’ Iraq was in breach of its disarmament obligations. Phillipe Sands, QC, in his report on the Chilcot inquiry, claims, ‘On legal matters, Blair manipulated the process, forcing the attorney general to give legal advice at the last possible moment, with troops already massed and a coalition ready to roll.’
The controversy is perhaps best summarised by Sir Menzies Campbell QC, speaking in 2005 as Liberal Democrat foreign affairs spokesman, ‘The whole letter suggests that the attorney general went from a position of believing military action to be illegal to a more equivocal view and finally to a conclusion that military action would be legal.’ This is further substantiated by the findings of the Chilcot report.
UN Resolutions 678 and 687
As a means of further justification, President George W. Bush explicitly referred to resolutions 678 and 687 in his Iraq Address. Resolution 678, implemented in November 1990 by the Council, empowered the Security Council members to use ‘all necessary means’, if Iraq failed to leave Kuwait by January. This has led advocates of the invasion to emphasise the importance of the resolution in justifying the decision to invade Iraq in 2003. Shaw, for example, argues ‘The authorisation to use force in [UN resolution] 678 included the restoration of international peace and security as well as the liberation of Kuwait. Resolution 687, after the 1991 ceasefire, included getting rid of… weapons of mass destruction.’ Critics have, nevertheless, opposed this argument on the grounds that a second resolution following Resolution 1441. In addition, critics argue that Resolution 1441 did not authorise the use of military force to the same extent as Resolution 678. Chinkin, for instance, suggests ‘1441…preserved the issue within the security council for the security council to deal with it. It did not…authorise individual state action.’
The Chilcot inquiry, launched in 2009 to investigate whether it was right and necessary for the UK to invade Iraq in March 2003 and the quality of pre-war planning, offers a similar verdict to that of Chinkin. Sir John Chilcot concludes in his public statement, ‘In the absence of a majority in support of military action, we consider that the UK was, in fact, undermining the Security Council’s authority.’ Given that the inquiry received £10million in taxpayer funds and had access to an abundance of classified documents, it is fair to argue that it carries sufficient credibility to support the argument of Chinkin and other critics alike. It is, however, also worth noting that the report states, ‘the Inquiry has not expressed a view on whether military action was legal.’ This is a rather surprising element of the source given its purpose — ‘to establish whether it was right and necessary for the UK to invade Iraq in March 2003.’ Regardless, the source does identify the importance of a second UN resolution, ‘it was clear that there was no chance of securing majority support for a second resolution before the US took military action.’ The impartiality of the source is, however, somewhat questionable. This is evidenced by the fact that although the original decision to hold the inquiry in camera was reversed, which suggests that it serves to inform the general public, the former Foreign Secretary David Miliband, speaking in 2009, revealed that Sir John Chilcot (the lead panelist) initially backed Gordon Brown’s decision to hold the inquiry in private. We must therefore question the objectivity and impartiality of the inquiry, given that the leading panellist was apparently happy to accept an inquiry conducted in private.
Source 3 is arguably of more use when exploring the arguments surrounding the UN resolutions. Goldsmith’s advice was, in fact, considered as evidence by the Chilcot inquiry. The memorandum provides an insight as to the legal implications Blair would supposedly face if he were to have sanctioned the use of military force without a second UN resolution. Although, with that being said, Goldsmith’s conclusions are somewhat conflicting. For instance, Goldsmith advises ‘the safest legal course would be to secure the adoption of a further resolution to authorise the use of force.’ From this, one can argue that Blair’s decision to invade without a resolution was unlawful, as proclaimed by Professor of Law, Nick Grief, ‘a second resolution expressly authorising the use of force was necessary.’ Goldsmith does, however, later detail ‘a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.’ Former Foreign Office deputy legal adviser, Anthony Aust, supports the advice given by Goldsmith and argues ‘There is a good legal argument that it was lawful on the basis of earlier UN resolutions…Resolution 678 was still in force. To say it was no longer effective because it was 13 years old is spurious.’ With that being said, if one is to appreciate the legal dilemma faced by the Blair administration prior to the invasion, Goldsmith’s memorandum is an essential source. In spite of this, the source is not entirely comprehensive in nature. Critics, such as Sir Adam Roberts, argue Goldsmith’s advice ‘doesn’t deal with the key question of why the situation was deemed so urgent that inspectors had to be withdrawn and forces sent in’. This claim can be supported by further consideration of the Chilcot inquiry. Chilcot’s public statement also notes that, ‘Given the gravity of the decision, Lord Goldsmith should have been asked to provide written advice explaining how, in the absence of a majority in the Security Council, Mr Blair could take that decision,’ in reference to his response to the military and the civil service who both asked for more clarity on whether force would be legal. The timeliness of Goldsmith’s advice is also rather surprising given that the Chilcot inquiry states ‘By early January, Mr Blair had also concluded that “the likelihood was war.”’ This raises questions as to why the executive would seek further legal advice in March on the need for a second UN resolution if war was already a predetermined outcome. The source further devotes a section to the ‘possible consequences’ of military action without a second resolution. This alone demonstrates the dubious nature of the legal position adopted by the Blair administration.
Regime Change
Advocates of the decision to invade have argued that regime change was a sufficient justification. Professor Vernon Bogdanor, for instance, places emphasis on Saddam Hussein’s track record of human rights abuses. Saadam, Bogdanor argues, was ‘brutal and ruthless, even by the standards of the other dictatorships of the Middle East’. The legal argument for regime change is typically advanced on the basis that Resolution 687 (paragraph 34) required that ‘[the Security Council]…decides…to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area,’ provided the necessary grounds for military intervention. This statement was widely interpreted as ‘obey or we will force you to by all means necessary.’ Roberts argues ‘the 1991 ceasefire was contingent on full Iraqi compliance, and the coalition would not necessarily be bound by the ceasefire if Iraq did not comply.’ Lord Alexander, QC, on the other hand, remains skeptical of this argument, ‘For our government to pin their argument for the use of force on it 12 years later, in a quite different situation, seems quite contrary to the wording and spirit of that resolution’ We can refer back to Goldsmith’s memorandum to further explore these arguments. In his advice, as circled below, Goldsmith explicitly states that regime change would not be deemed just under international law.
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The Chilcot inquiry further exposes the ulterior motives of the Coalition.
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WMD
Essential to almost all of the previously discussed legal arguments is Iraq’s alleged possession of WMD. Speculating in February 2003 prior to the invasion, Ian Kershaw raised the issue of Iraq’s capabilities, ‘We have to take it on trust that Saddam is building weapons of mass destruction.’ With benefit of hindsight, it is now widely regarded that the invading party overstated Iraq’s capabilities. More contentious still, is the grounds for which the Blair administration reached their conclusions as to Iraq’s WMD program. Roberts argues ‘The crucial weakness in the case for war was that the US and UK governments overstated the Iraqi threat.’ It does, however, remain imperative that the Blair administration be judged by the information available at the time. For this, we can look to the Chilcot inquiry. In its findings, the inquiry details (see below) that there was a belief amongst government officials that Iraq did in fact possess WMD.
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Whilst one can use these findings to defend the decision to invade, the report also details that the basis for which the intelligence decisions were made was flawed.
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Conclusion
Above all, the legal justifications for the invasion of the Iraq War are very much worthy of the criticism offered by contemporaries and modern observers alike. Whilst the findings of the Chilcot inquiry offer a somewhat damning verdict of the Blair administration’s handlings prior to the invasion, it also remains important to appreciate the benefit of hindsight. It is, I believe, difficult to comprehend the gravity of the decisions faced by Blair and other government officials at the time. With that being said, there was clear objection amongst members of the executive as primarily evidenced by Wilmshurt’s resignation. The attempt to emit material from this letter also raises suspicions as to the true intentions of the Government. It would appear that this was most likely a face-saving exercise. Goldsmith’s advice further reveals the differences between the US and British attitude toward justifying the war. The exposure of Goldsmith’s decision to change his advise to meet the official government line further casts doubts as to the legality of the invasion. After considering each legal argument, it would seem that the deciding upon the legality of the Iraq War is essentially a political judgement. Political judgement is arguably applicable to several aspects of the legal arguments, most notably the UN resolutions. It is therefore difficult to reach a comprehensive conclusion as to the legality of the Iraq War. In order to do so, it would require further exploration of source material than what has been utilised in this project.
Critical Reflection
Intellectually, the greatest challenged I faced during this project was coming to terms with what the assignment was actually asking. Whilst I knew that I wanted to focus on the Iraq War, it was difficult to comprehend how exactly I would contextualise the primary material. After contacting my seminar tutor and speaking with companions that also study history, it became more clear as to what I must set out to achieve. From this, the main focus was trying not to offer a political piece that served to justify the Iraq War or vice versa. Instead, I aimed to identify several key arguments surrounding the legality of the Iraq War and place them within their historiographical context. I would then assess these arguments against the primary material.
Methodologically, the analysis of primary material proved a significant challenge due to the nature of the sources. I had to avoid repetition in my discussion when using snippets of material that offered similar opinions. I therefore aimed to identify conflicting aspects of the sources to be able to support both sides of the legal arguments explored. I have always struggled with primary source analysis throughout my academic studies from secondary school until present. The project has thus served as a refreshing opportunity to develop my primary source skills, an issue that I have tended to avoid up until the completion of this project.
Originally published 15.10.2019